MONTESQUIEU, a French legal jurist and philosopher, once wrote in The Spirit of the Laws: “There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice.” In Pakistan, for the victims of wrongful convictions, nothing would ring more true.

In the well-known Mazhar Hussain case, a man falsely convicted for murder spent 13 years on death row before he was acquitted by the Supreme Court for all charges. Unfortunately, he was acquitted two years after he had already died in jail. In 2017, a man falsely accused in a blasphemy case was acquitted from a life sentence by the Supreme Court after spending nine years in jail. When the Supreme Court released him, he was let go with a mere apology. Most recently, in 2018, the Supreme Court acquitted a 21-year-old man who was falsely convicted for trafficking drugs when he was just a 10-year-old boy. After spending more than a decade in terrible prison conditions, he was released — by then fatally afflicted with tuberculosis.

One could forgive such horrifying incidents of maladministration of justice and wrongful convictions if they were outliers of an otherwise efficient criminal justice system. However, among the legal community such stories are neither shocking nor outliers. They are the norm.

As per a recently launched report by the Foundation of Fundamental Rights (FFR) and Reprieve, which conducted a detailed analysis of Supreme Court judgements on death penalty appeals from 2010 to 2018, it has come to light that 39 per cent of all capital cases end in complete acquittal. However, the average time spent by innocent persons in jail, convicted on death row, until they are acquitted by the Supreme Court on appeal is a shocking 10 years. In fact, one in every 10 wrongfully convicted death row inmates must wait more than 15 years before he or she is released!

Over one third of death row appeals end in complete acquittal.

This means that in Pakistan, averagely, over one third of the prison population convicted and sentenced to the death penalty is comprised of innocent people, all of whom will eventually be acquitted, but not until they have wasted 10 to 15 years of their lives in an overcrowded and poorly managed jail, waiting for justice to be done.

Victims of wrongful convictions lose valuable time and reputation, face stigmatisation, as well as suffer significant economic harm – and it is well known that the more time lost behind bars always equals to more damage suffered by a victim. Therefore, upon release, it should be the duty of the government under the principle of ‘ubi jus, ibi remedium’ to make the person whole for the loss they have suffered for every hour of every day they have wrongly spent in jail so that they may be able to readjust back into society and rebuild their lives. This is why many states in the world, along with improving their criminal justice systems, have enacted legislation to provide just compensation for the innocents they jail.

A system of providing financial compensation to the wrongfully convicted also acts as a powerful financial deterrent against the state from wrongfully convicting its own citizens. It does this by ensuring that the state does not overzealously prosecute persons who might be innocent and ensuring that criminal investigations and prosecutions are comprehensive. Furthermore, it encourages governments to fund legal reforms more proactively so as to avoid financial liabilities. Most importantly, courts are also mindful of providing every citizen a fair opportunity of defence before conviction. Overall, such legislation produces accountability for one of the most restrictive powers of the state: the power to restrain the liberty of its citizens.

Given that the number of wrongful convictions is very high and the average time of acquittal is also excessively lengthy, it is the need of the hour for Pakistan to also enact legislation that provides for some recompense to those who have had their liberty unjustly snatched away by the state. One would hope that the current government would take initiative and promulgate a law that provides financial compensation to the wrongfully convicted in Pakistan by reimbursing them for all court and attorney fees they spend fighting their conviction, along with an annual allowance for each year that they spent wrongfully incarcerated; factoring in their loss of income along with any reputational harm as well.

This is the least we must do to meet with the constitutional promise set out by Article 4 and Article 9 of the Constitution; that no action detrimental to the right of liberty of a citizen shall be taken except in strict accordance of the law, lest the shield of the law and the name of justice in Pakistan becomes synonymous with ‘tyranny’ to those innocents who toil away in jail, waiting to be vindicated.

The writer is a human rights lawyer working at the Law and Policy Chambers in Islamabad.

Email: omerimranmalik@gmail.com

Twitter: @OmerImranMalik

Published in Dawn, September 1st, 2019